On August 5th the Centers for Medicare & Medicaid Services (CMS) issued a memorandum to all state survey agencies requiring that during the next standard survey of a nursing home, whether a Traditional or Quality Indicator Survey (QIS) survey, the survey team must request and review the nursing home’s policies and procedures prohibiting nursing home staff from taking or using photographs or recordings in any manner that would “demean or humiliate” a resident.  CMS stated in the memorandum that it was acting in response to recent media reports that disclosed occurrences of nursing home staff taking unauthorized photographs or video recordings of nursing home residents, sometimes in compromising or humiliating positions, and then posting the photographs or recordings on social media networks such as Snapshot, Facebook or Instagram.

In the memorandum CMS instructed state survey agencies to begin this review 30 days after the release of the memorandum and to implement the new policy until each nursing home has been surveyed for compliance. CMS also instructed the survey teams to request to see the nursing home’s written policies as necessary based upon identified concerns and/or complaints.

CMS requires that each nursing home develop and implement written policies and procedures that prohibit all forms of abuse, including mental abuse. According to the memorandum, each nursing home “must review and/or revise its written abuse prevention policies and procedures to include and ensure that nursing home staff are prohibited from taking or using photographs or recordings that would demean or humiliate a resident,” including the distribution of photographs or recordings on social media.

The memorandum also requires that each nursing home report all allegations of social media abuse; provide protection for any resident involved in the allegations; conduct a thorough investigation; implement corrective actions to prohibit further abuse; and to report the findings required. Examples of steps that the nursing home may put in place immediately to prevent further abuse, as set forth in the memorandum, include staffing changes, increased supervision, protection from retaliation, and follow-up counseling for residents. Further, based on the investigative findings the nursing home must implement corrective actions to prevent recurrence.

Senator Charles Grassley (R – Iowa), the Chairman of the Senate Judiciary Committee, praised the CMS’ memorandum in a press release and said the CMS guidance is “welcome and necessary.” “Nursing homes are obligated under the law to keep their residents free from abuse,” he said.  “Exploitation on social media is a form of abuse, and the [CMS] memo makes that clear.  We need to prevent it, and we need to  punish it when it happens.”